WERNLI MONIKA BARBARA Vs. STATE

JUDGEMENT

(1.) Mr Malhotra, the learned Additional Solicitor General submits that the affidavit has been filed with regard to the policy of the Central Government concerning terminally ill undertrials who are foreign nationals. The entire affidavit is relevant and accordingly, the same is reproduced hereinbelow:

(2.) Now, coming to the merits of the present case. The case of the prosecution is that the present petitioner in conspiracy with other co-accused including one Mr. Brett was attempting to smuggle out contraband from India. It is alleged that there is a recovery of 450 grams of Heroin and 8.2 kg. of Hashish. The entire recovery is said to have been made from the checked in baggage of Mr. Brett. Admittedly, no recovery has been made from the present petitioner. She was, however, said to be accompanying the said Mr. Brett. The peculiar circumstance of this case is that the said Mr. Brett pleaded guilty before the Court and in view of this plea of guilt he has been convicted and sentenced to ten years rigorous imprisonment plus Rs 1,00,000/- fine. He is presently in jail undergoing the sentence. It was, however, further stated by the said Mr. Brett that he alone was responsible for the contraband. Therefore, according to the Counsel for the petitioner, since the person responsible and guilty of the offence under the NDPS Act has already pleaded guilty and has been convicted, there are good grounds to show that no offence is made out against the present petitioner. He further submitted that the petitioner is a patient of HIV Aids and is terminally ill. She is a Swiss national and just because she is a foreigner, she cannot be denied the grant of bail on the plea that she will flee from this country. He further submitted that officials of the Swiss Embassy can stand surety for the petitioner to ensure that she does not leave the country during the period of trial.

(3.) Mr. Malhotra opposed the grant of bail on two counts. Firstly, he submitted that there is every likelihood of the present petitioner fleeing from justice and of leaving the country. He also submitted that the recovery is of a commercial quantity and, therefore, the rigours of Section 37 of the NDPS Act would come into, play. In this view of the matter he submitted that the petitioner ought not to be released on bail only on humanitarian grounds and in support of this contention he cited the decision of Union Of India v. Ram Samujh and Another reported in IV (1999) CCR 89 (SC)=VIII (1999) SLT 275=1999 (3) CC Cases (SG) 22. He drew the attention of the Court particularly to paragraphs 7 and 8 of the judgment and indicated that the Supreme Court held that the persons accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37 namely (i) there are reasonable grounds for believing that accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail, are satisfied. He, therefore, submitted that merely on humanitarian grounds, the accused under the NDPS Act would not be entitled to bail when the provisions of Section 37 are attracted. He further submitted that the petitioner was being treated at Dr Ram Manohar Lohia Hospital in compliance with the directions given by this Court and by a letter dated dated 2nd May, 2005, the Additional Medical Superintendent of the said hospital has stated that the petitioner is now fit for discharge from the hospital and, therefore, the Superintendent of the concerned jail was requested to make arrangement for taking back the patient from the hospital. A copy of that letter dated 2nd May, 2005 was shown to me. Mr Malhotra also submitted that instead of granting bail to the petitioner the Court could direct that the trial be expedited and concluded, say, within sixty days.